Kenoss Pty Ltd v Palerang Council

Judgment (Ex tempore) 1WARD JA: This is an application brought by notice of motion by Kenoss Pty Limited seeking an order vacating the hearing date of its application for leave to appeal and appeal from a decision by Biscoe J in the Land and Environment Court. His Honour determined a separate question in proceedings before the Land and Environment Court as to the proper construction of a particular provision in the Yarrowlumla Local Environmental Plan 2002. The applicant filed a summons seeking leave to appeal from that decision on 5 October 2012. 2I am informed by Senior Counsel for the respondent (Mr Clay SC) that the effect of the determination by Biscoe J of the separate question was that the development the subject of the application is prohibited and that, if leave to appeal were not to be granted from his Honour's decision or, if granted, the appeal were to be dismissed, then the proceedings in the Land and Environment Court would be at an end. 3The matter was listed, in February this year, for a hearing on 12 June 2013, of the application for leave to appeal concurrently with the appeal itself. It is conceded by both parties that the issue in dispute on that appeal is limited to a discrete question of law. It relates to the statutory construction of a provision in the relevant planning instrument. 4On the applicant's behalf a white book has been filed which contains the applicant's summary of argument in relation to the issues to be considered on the application for leave to appeal (and appeal). 5There is included in that bundle a statement of agreed facts. The circumstances that have led to the application for vacation of the hearing date are set out in the affidavit sworn 5 June 2013 of Spiros Brendas. Mr Brendas is the director of the applicant (Kenoss Pty Limited). Mr Brendas has deposed that on 13 May 2013 (thus some three months after the matter had been listed for hearing in this Court) he was served with a Notice of Intention to file a Notice of Ceasing to Act by his then solicitors. He has therefore been on notice since 13 May 2013 that his then solicitors were intending to cease acting for him. 6The matter was listed for mention by his former solicitors, for the purpose of obtaining leave to file a Notice of Ceasing to Act, on 3 June 2013. Mr Brendas retained Counsel to appear at the directions hearing on 3 June, on which occasion application was made for an order vacating the hearing. According to Mr Brendas' affidavit, that application was made on the basis that, "amongst other reasons", new lawyers and counsel would be required should the matter proceed on 12 June 2013. It was submitted that such new lawyers and counsel would be unable to prepare for the matter in the relevant time. 7The application for vacation of the hearing date was not granted at the directions hearing. Directions were made by the Registrar that any such application be made by notice of motion. Hence the listing of the application before me this morning. 8Mr Brendas has deposed in his affidavit (at [14]) that: At the time I instructed that a hearing date be allocated for the hearing of this appeal on or about 31 January 2013 it was my belief that the matter was ready to go to trial on the separate question. Since that time I have formed the view that the situation of Kenoss Pty Limited is such that it is unable to proceed with the appeal. Given the current situation of Kenoss Pty Limited I am required to obtain further legal advice as to the status of this appeal and as well as the matter generally. I apologise to the Court and the parties for my misapprehension and request that the Court make the orders sought in the motion filed herewith. 9There is no evidence as to what the current "situation" of Kenoss Pty Limited is, nor as to the circumstances in which the company's former solicitors ceased to act for the company. I understand that Mr Brendas may have had his attention drawn by the Registrar to the provisions of the rules which apply in relation to representation of corporations by solicitors in proceedings in this Court. The affidavit that has been sworn by Mr Brendas does not contain the information that would be required in circumstances where there was an application for the corporation to be represented by directors or officers of the corporation. I note there is authority in Jiwira Pty Ltd v Primary Industry Bank of Australia Ltd (Supreme Court of New South Wales, McLaughlin M, 17 February 1995, unreported) to suggest that this is required even in circumstances where a barrister may be briefed on a direct access basis to appear on the matter. In any event, there is no evidence as to what it is about the current situation of Kenoss Pty Limited that Mr Brendas says means that it requires further advice. 10Counsel appearing for Mr Brendas (Mr Korakis) on the present application indicated that the advice to which Mr Brendas referred was in relation to the status of the appeal and perhaps in relation to the proceedings generally. Insofar as Mr Brendas is seeking further legal advice as to the status of the appeal, that seems to be clear. It has been listed (since February this year) for hearing on 12 June. As far as I can see from the white book, the submissions in relation to the application have been filed and it would appear to be in order to proceed on 12 June 2013. 11There is no evidence that Mr Brendas has taken steps since 13 May 2013 (other than retaining counsel on or about 1 June 2013 to appear at the 3 June directions hearing) in order either to obtain advice in relation to the appeal proceedings or by way of the retainer of counsel to appear on the hearing of the appeal. 12There are now five days before the hearing, in which time I would have assumed that competent counsel would be in a position to read and prepare for what is an appeal on a discrete question, namely, the statutory construction of the relevant clause. 13The power to adjourn proceedings or vacate hearings in s 66 of the Civil Procedure Act 2005 (NSW) confers a discretion that must be exercised in accordance with the overriding purpose described in s 56(1) of the Civil Procedure Act and in accordance with the dictates of justice as described in s 58 of that Act. The considerations that must be taken into account include: the prejudice to the respondent by such an adjournment; the prejudice to the applicant if such an adjournment is refused; the circumstances in which the application is brought; and considerations relating to the administration and management of matters in this Court. 14It is noted by Mr Korakis that there has been no failure on the part of the applicant to comply with directions. That is not in dispute. As to the late withdrawal of Kenoss' legal representative, there are certainly circumstances in which the Court will grant an adjournment in such cases. There are other cases where adjournment applications have been refused even in circumstances where there has been a late withdrawal of legal representation (especially where the withdrawal relates to a fee dispute). As already noted, there is nothing to indicate the basis on which the withdrawal has occurred in the present case or as to the "situation" of Kenoss to which Mr Brendas has referred. 15I understand from the Registrar in the Court of Appeal that the earliest date that would be available for a non-urgent listing of the application for leave to appeal and concurrent hearing of the appeal itself (if the June hearing date were to be vacated) would be a date in mid November. Mr Brendas has given no indication of the amount of time that would be required in order to obtain the advice that he says that he needs in relation to the matter, although I am informed that he would like to have an adjournment of about two months. 16It is submitted that costs would be an adequate remedy for any prejudice suffered by the respondent. Mr Clay notes that it is a consent authority. He points to no prejudice that the respondent will suffer, other than costs, in relation to an adjournment. I note that in Aon Risk Services Australia Limited v ANU (2009) 239 CLR 175 (at [24]) French CJ noted that the discretion there in consideration (to amend pleadings) was one that was to be exercised in the context of the common law adversarial system as qualified by changing practice and that this is not a system which today permits disregard of undue delay. 17I am not satisfied that the basis on which an application to vacate the hearing date has been sought warrants the vacation of a hearing date that was fixed back in February 2013, particularly in circumstances where the matter that is to be before the Court next week is a discrete question of statutory construction. The matter appears to have been prepared for hearing by the applicant's former instructing solicitor. I am not satisfied that there would be any difficulty for competent counsel to review the material and be in a position to present the matter before the Court of Appeal next week. It is submitted that if the vacation is not granted the applicant will be unable to proceed with the appeal. There is nothing in the material before me that suggests that that would be the case. In the circumstances, and having regard to the efficient case management of matters within this Court, I am not satisfied that I should vacate the hearing date. I dismiss the applicant's notice of motion. 18The respondent seeks its costs of the applicant's notice of motion. There is nothing to indicate that costs should not follow the usual course. Therefore the order of the Court will be that the applicant's notice of motion to vacate the hearing date is dismissed with costs.